Crescent Univ. City Venture, LLC v. Ap Atl., Inc.

Crescent Univ. City Venture, LLC v. AP Atl., Inc., 2018 NCBC 91.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY 15 CVS 14745 (Master File)

CRESCENT UNIVERSITY CITY
VENTURE, LLC,

Plaintiff,

v.

AP ATLANTIC, INC. d/b/a
ADOLFSON & PETERSON
CONSTRUCTION,

Defendant,

v.

MADISON CONSTRUCTION
GROUP, INC.; TRUSSWAY
MANUFACTURING, INC.; T. A.
KAISER HEATING & AIR, INC.; ORDER AND OPINION CONCERNING
SEARS CONTRACT, INC.; MACEDO FURTHER DISCOVERY IN
CONTRACTING CO.; WHALEYS
DRYWALL, LLC; STALLINGS CONSOLIDATED CASE AND ORDER
DRYWALL, LLC; MAYNOR PI, INC.; TO MEDIATE
MATUTE DRYWALL, INC.;
INTERIOR DISTRIBUTORS, A
DIVISION OF ALLIED BUILDING
PRODUCTS, CORP.; MANUEL
BUILDING CONTRACTORS, LLC;
EAGLES FRAMING COMPANY,
INC.; DIAZ CARPENTRY, INC.;
SOCORRO CASTILLE MONTLE;
and GUERRERO CONSTRUCTION
PRO, INC.

Third-Party
Defendants.
MADISON CONSTRUCTION
GROUP, INC.,

Third-Party
Plaintiff,

v.

MANUEL BUILDING
CONTRACTORS, LLC,

Fourth-Party
Defendant.

CRESCENT UNIVERSITY CITY 16 CVS 14844 (Related Case)
VENTURE, LLC,

Plaintiff,

v.

ADOLFSON & PETERSON, INC.,

Defendant.

CRESCENT UNIVERSITY CITY 18 CVS 1642 (Related Case)
VENTURE, LLC,

Plaintiff,
v.

TRUSSWAY MANUFACTURING,
INC.; and TRUSSWAY
MANUFACTURING, LLC,

Defendants.

1. THIS MATTER is before the Court sua sponte to address certain matters

raised by the parties’ August 3, 2018 Joint Status Report (the “Status Report”) and
discussed at the August 20, 2018 telephone status conference in the above-captioned

case.

2. After considering the Status Report and the arguments of counsel at the

August 20, 2018 status conference, the Court, in the exercise of its discretion, hereby

resolves these matters and enters rulings on the conduct of further discovery as set

forth herein.

Troutman Sanders LLP, by Kiran H. Mehta, Samuel T. Reaves, and
Kristen L. Schneider, Bradley Arant Boult Cummings LLP, by Avery A.
Simmons and Douglas Patin, and the Law Firm of John D. Bond, III, by
John D. Bond, for Plaintiff Crescent University City Venture, LLC.

Robinson, Elliot & Smith, by William C. Robinson, James, McElroy &
Diehl, P.A., by Dorothy M. Gooding, Johnston, Allison & Hord, P.A., by
Greg C. Ahlum, Robert L. Burchette, and Parker Evans Moore, Hall
Booth Smith, P.C., by Alan R. Belcher, Jr. and Robert McCune, and
Ragsdale Liggett PLLC, by William W. Pollock and Edward E. Coleman,
III, for Defendant AP Atlantic, Inc. d/b/a Adolfson & Peterson
Construction.

Johnston, Allison & Hord, P.A., by Greg C. Ahlum, Robert L. Burchette,
and Parker Evans Moore, for Defendant Adolfson & Peterson, Inc.

Baucom, Claytor, Benton, Morgan & Wood, P.A., by Brian E. Wolfe and
Robert Gunst, for Third-Party Defendant Madison Construction Group,
Inc.

Smith Moore Leatherwood LLP, by Jeffrey P. MacHarg, and Pagel, Davis
& Hill, P.C., by Martyn B. Hill and Kent J. Pagel, for Defendant/Third-
Party Defendant Trussway Manufacturing, LLC f/k/a Trussway
Manufacturing, Inc.

Goodman McGuffey LLP, by James W. Flynn and Grayson Shephard,
for Third-Party Defendant T.A. Kaiser Heating & Air, Inc.

Hedrick Gardner Kincheloe & Garofalo, LLP, by David Levy and Adam
deNobriga, for Third-Party Defendant Sears Contract, Inc.
Cranfill Sumner & Hartzog LLP, by John Ong, for Third-Party
Defendant Interior Distributors.

Bledsoe, Chief Judge.

I.

BACKGROUND

3. These consolidated actions all arise from the construction of a student

apartment complex (the “Project”) near the University of North Carolina at Charlotte.

Crescent Univ. City Venture, LLC v. Trussway Mfg., Inc., 2018 NCBC LEXIS 74, at

*2 (N.C. Super. Ct. July 16, 2018). The Court has previously discussed the factual

and procedural background of the actions as reported at Crescent University City

Venture, LLC, 2018 NCBC LEXIS 74; AP Atlantic, Inc. v. Crescent University City

Venture, LLC, 2017 NCBC LEXIS 93 (N.C. Super. Ct. Oct. 5, 2017); AP Atlantic, Inc.

v. Crescent University City Venture, LLC, 2017 NCBC LEXIS 59 (N.C. Super. Ct. July

13, 2017); AP Atlantic, Inc. v. Crescent University City Venture, LLC, 2017 NCBC

LEXIS 49 (N.C. Super. Ct. June 6, 2017); and AP Atlantic, Inc. v. Crescent University

City Venture, LLC, 2016 NCBC LEXIS 60 (N.C. Super. Ct. July 28, 2016).

4. On July 16, 2018, the Court ordered that the Mecklenburg County civil

actions bearing the filing numbers 18 CVS 1642 (the “Trussway Action”), 16 CVS

14844 (the “Crescent Action”), and 15 CVS 14745 (the “Lead Action,” and, with the

other actions, the “Consolidated Action”) “be consolidated for all future proceedings,

including but not limited to trial, under North Carolina Rule of Civil Procedure 42.”1

1 In the Court’s Order on Motion to Consolidate entered in the Lead Action, the Trussway
Action is incorrectly referred to as bearing the filing number 15 CVS 14745. The correct filing
number for the Trussway Action is noted above and was correctly referenced in the Court’s
Crescent Univ. City Venture, LLC, 2018 NCBC LEXIS 74, at *13–15; (Order Mot.

Consolidate 2–3, ECF No. 455).2 The Court consolidated the cases after concluding

that consolidation would save the parties undue expense, promote judicial economy,

and lessen the risk of Defendant/Third-Party Defendant Trussway Manufacturing,

LLC f/k/a Trussway Manufacturing, Inc. (“Trussway”), and potentially other parties,

suffering inconsistent verdicts at trial. Crescent Univ. City Venture, LLC, 2018 NCBC

LEXIS 74, at *13–14. The Court ordered that the Trussway Action, upon

consolidation, would be subject to the Case Management Order in the Lead Action.

Id. at *15.

5. The Court further ordered all parties to the Consolidated Action to meet and

confer and submit to the Court a status report concerning their positions on whether

revisions were necessary to the case management deadlines as set forth in the most

recently amended Case Management Order in the Consolidated Action as a result of

the consolidation.

6. In the subsequently filed Status Report, Plaintiff Crescent University City

Venture, LLC (“Crescent”), Defendants AP Atlantic, Inc. (“AP Atlantic”) and Adolfson

& Peterson, Inc. (“A&P”), and Third-Party Defendants T.A. Kaiser Heating & Air,

Inc. (“T.A. Kaiser”) and Madison Construction Group, Inc. (“Madison”) set out

proposed deadlines for discovery on Crescent’s negligence claim in the Trussway

Order and Opinion on Defendant’s Motion to Dismiss and Plaintiff’s Motion to Consolidate
entered in the Trussway Action on the same date, July 16, 2018. That Order and Opinion
also ordered that the cases be consolidated.

2 Unless otherwise noted, all citations to court documents herein cite to documents filed in
the Lead Action.
Action, notwithstanding that discovery in the Lead Action and Crescent Action ended

before the Trussway Action was filed. Crescent requests that further discovery be

allowed on its negligence claim in accordance with these proposed deadlines.

7. AP Atlantic, A&P, T.A. Kaiser, and Madison have indicated that they do not

believe discovery on Crescent’s negligence claim is necessary but ask that they be

allowed to participate in any further discovery the Court allows; they therefore join

in proposing the deadlines in the Status Report. Trussway and Third-Party

Defendants Sears Contract Inc. (“Sears”) and Interior Distributors argue that no

further fact or expert discovery should be permitted and do not support the deadlines

proposed in the Status Report. Interior Distributors also takes the position that all

parties to the Consolidated Action should be allowed to respond to any further

discovery that is permitted.

8. The Court held a status conference to address the matters raised by the

Status Report on August 20, 2018. All parties taking a position in the Status Report

were represented by counsel at the conference.

II.

LEGAL STANDARD

9. “When actions involving a common question of law or fact are pending in

one division of the court,” the trial judge may order the actions consolidated and “may

make such orders concerning proceedings therein as may tend to avoid unnecessary

costs or delay.” N.C. R. Civ. P. 42(a). Rule 42 vests the trial court with broad

discretion, and the court’s decisions on matters encompassed by Rule 42 will not be
reversed on appeal absent a manifest abuse of that discretion. Markham v.

Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 448, 481 S.E.2d 349, 353 (1997)

(reviewing trial court’s decision to deny consolidation for abuse of discretion); 2 G.

Gray Wilson, North Carolina Civil Procedure § 42-2 (3d ed. 2007) (“[Rule 42(a)] vests

the court with broad discretion to promote the efficient and expeditious resolution of

consolidated cases. This discretion extends to pretrial proceedings, including

discovery[.]”); see also In re Moore, 11 N.C. App. 320, 322, 181 S.E.2d 118, 120 (1971)

(“An action of the trial judge as to a matter within his judicial discretion will not be

disturbed unless a clear abuse of discretion is shown.”).

III.

ANALYSIS

10. At the outset, the Court notes the inefficient manner in which Crescent has

pursued this litigation. The Lead Action in this set of consolidated cases was filed

over three years ago. On November 20, 2015, AP Atlantic filed its Amended

Complaint naming Trussway and Crescent as defendants. (Am. Compl. 1, ECF No.

6.) Since January 29, 2016, Crescent has maintained a counterclaim in the Lead

Action against AP Atlantic for defects in the Project’s floor trusses—trusses Crescent

knew Trussway manufactured. (Def. Crescent Univ. City Venture, LLC’s Answer &

Countercl. Am. Compl. 43–52, ECF No. 19.) Crescent amended its pleading

containing this claim on more than one occasion. (Def. Crescent Univ. City Venture,

LLC’s Answer & Am. Countercl. Am. Compl. 53, ECF No. 159; Def. Crescent Univ.
City Venture, LLC’s Am. Answer & Second Am. Countercl. Am. Compl. 43, ECF No.

212.)

11. At any time during this litigation after November 20, 2015—even after the

Court realigned the parties in December 2017—Crescent could have sought to bring

its negligence claim against Trussway in the Lead Action. See N.C. R. Civ. P. 13(g)

(“A pleading may state as a crossclaim any claim by one party against a coparty

arising out of the transaction or occurrence that is the subject matter either of the

original action or of a counterclaim therein or relating to any property that is the

subject matter of the original action.”); N.C. R. Civ. P. 14(a) (“The plaintiff may assert

any claim against the third-party defendant arising out of the transaction or

occurrence that is the subject matter of the plaintiff's claim against the third-party

plaintiff[.]”). Crescent did not seek to do so.

12. Instead, on February 12, 2018—roughly one month after discovery in the

Lead and Crescent Actions had ended—Crescent opted to assert a new claim by a

method that did not require leave of court and filed the Trussway Action.

(Mecklenburg County, No. 18 CVS 1642, Compl. ¶¶ 37–41 [hereinafter “Trussway

Action Compl.”], ECF No. 3.) That new action asserted a single negligence claim

against Trussway for defects in the Project’s floor trusses. (Trussway Action Compl.

¶¶ 37–41.) Crescent then moved to consolidate the Trussway Action with the Lead

Action and the Crescent Action.

13. Now, despite objecting to the last extension of the case management

deadlines in the Consolidated Action as “extremely prejudicial,” (Crescent Univ. City
Venture, LLC’s Opp’n Joint Mot. Modify Case Management Order Concerning

Mediation and Disclosure Expert Information 3, ECF No. 253), Crescent requests an

additional three to fourth months of discovery on its new claim.

14. Through its chosen strategy, Crescent has essentially effected a unilateral

amendment to its pleadings in the Lead Action at the last minute. The Court, in

determining how best to manage its docket and prevent undue cost and delay, must

now decide whether it would rather (i) allow a nearly identical case3 to proceed along

a completely separate timeline and thus risk “replaying” the current litigation, or (ii)

keep these cases consolidated in an effort to efficiently resolve all litigation relating

to alleged defects in the Project’s floor trusses despite the different procedural posture

of Crescent’s new lawsuit. This procedural quandary could have been avoided by

timely and prudent pleading.

15. Notwithstanding the above, having considered the parties’ arguments in the

Status Report and at the August 20, 2018 status conference, as well as other matters

of record, the Court concludes, in the exercise of its discretion, that consolidation of

these cases remains the most efficient way for the Court to maintain its docket and

for the parties to finally resolve these matters.

16. The Court further concludes, in the exercise of its discretion, that it will not

deny all discovery on Crescent’s negligence claim in the Trussway Action. Though

3 Trussway’s responsive pleading to Crescent’s Trussway Action Complaint indicates that
Trussway intends to pursue claims against other parties from the Lead Action in the
Trussway Action. (Trussway Mfg., Inc.’s Answer Crescent Univ. City Venture, LLC’s Compl.
9, ECF No. 460.)
the Trussway Action has been consolidated with two post-discovery cases, the

Trussway Action is still a distinct suit, see Smith v. Ray, 409 Fed. App’x 641, 646 (4th

Cir. 2011) (“Although consolidation is permitted as a matter of convenience and

economy in administration, it . . . does not merge the suits into a single cause, or

change the rights of the parties, or make those who are parties in one suit parties in

another.”),4 and the North Carolina Rules of Civil Procedure provide for discovery

relevant to the subject matter of that suit, N.C. R. Civ. P. 26(b)(1). The Court will,

however, exercise its discretionary powers under Rule 42(a) and Rule 26 to resolve

the discovery necessary for Crescent’s negligence claim in a timely, efficient, and cost-

effective manner.

IV.

CONCLUSION

17. WHEREFORE, the Court, in the exercise of its discretion, hereby

ORDERS as follows:

a. Discovery in the Lead Action and Crescent Action shall remain closed.

Any discovery ordered herein on Crescent’s negligence claim shall not

be considered a part of the record in the Lead Action or the Crescent

Action for purposes of the pending summary judgment motions in those

actions. Further, should the Court eventually dismiss the Trussway

4 North Carolina’s courts have long considered federal decisions interpreting federal rules as
persuasive authority when deciding questions concerning similar state rules. Tetra Tech
Tesoro, Inc. v. JAAAT Tech. Servs., LLC, 794 S.E.2d 535, 539 (N.C. Ct. App. 2016). The
substance of Federal Rule of Civil Procedure 42(a) is very similar to North Carolina’s Rule of
Civil Procedure 42(a) for purposes of the Court’s decision here. Compare Fed. R. Civ. P. 42(a),
with N.C. R. Civ. P. 42(a).
Action, the discovery ordered herein will be excluded from any trial of

the remaining consolidated actions.

b. Crescent shall have through and including August 31, 2018 to serve (i)

its supplemental discovery responses related to the damages sought on

its negligence claim against Trussway, and (ii) its supplemental expert

reports regarding its negligence claim against Trussway.5

c. The parties to the Consolidated Action shall have through and including

September 7, 2018 to meet and confer regarding further discovery

deadlines concerning Crescent’s negligence claim against Trussway.

d. The parties shall have through and including September 7, 2018 to file

with the Court a joint status report concerning further proposed

discovery deadlines related to Crescent’s negligence claim against

Trussway. In the event the parties are unable to agree on further

discovery deadlines, the parties’ joint status report shall indicate their

respective positions on further discovery deadlines and the reasons for

those positions.

e. The parties shall conduct an additional mediation, involving all parties,

by October 31, 2018.

5 The Court sets this deadline based on its understanding of Crescent’s counsel’s
representation at the August 20, 2018 status conference that Crescent would be prepared to
comply with the deadlines proposed in the Status Report. In the event the August 31 deadline
is no longer feasible, the Court will entertain granting a brief extension to the deadlines set
forth herein upon an e-mail request to the Court’s law clerk
(ethan.r.white@ncbusinesscourt.net).
SO ORDERED, this the 29th day of August, 2018.

/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge